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Huckaby v. A.G. Perry & Son3/23/2000
in question. We overrule this point of error.
In their ninth point of error, the Huckabys contend that the trial court erred in allowing unnecessary expert testimony to reconstruct the accident or to establish causation and in allowing expert opinions by unqualified experts. First they argue that the trial court erred in allowing expert testimony from Trooper Shipley that was not necessary to reconstruct the subject accident or to establish causation. They argue that the opinions of an expert witness are not necessary in this case because the jury has the same information without the witness and that it was tendered simply to mislead and confuse the jury.
The admission or exclusion of evidence is a matter within the trial court's sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, the appellant must show that the trial court did commit error and that this error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992); see also Texas Dep't of Transp. v. Able, 981 S.W.2d 765, 770 (Tex. App.-Houston [1st Dist.] 1998, pet. granted). The court must review the entire record in making this determination. McCraw, 828 S.W.2d at 758.
In the instant case, the Huckabys themselves stipulated that Trooper Shipley's expertise in accident reconstruction established his qualifications as just such an expert and even elicited testimony from him. Because the Huckabys permitted his testimony about the very matter of accident reconstruction about which they now complain on appeal, they have waived any alleged error. See Atlantic Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 420 (Tex. App.-Houston [14th Dist.] 1991, writ denied); Blount v. Bordens, Inc., 892 S.W.2d 932, 944 n.7 (Tex. App.-Houston [1st Dist.] 1994), rev'd on other grounds, 910 S.W.2d 931 (Tex. 1995) (holding that a party waives any complaint if testimony to the same effect has been previously admitted without objection).
The Huckabys next argue that Trooper Shipley was never qualified as an expert in highway design. The Texas Supreme Court recently addressed the subject of expert testimony in Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998):
Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the trier of fact in understanding the evidence or determining a fact issue. Whether an expert is qualified is, under Rule 104(a), a preliminary question to be decided by the trial court. " he party offering the expert's testimony bears the burden to prove that the witness is qualified under [Rule] 702." The offering party must demonstrate that the witness "'possess special knowledge as to the very matter on which he proposes to give an opinion.'" A trial court's acceptance of a witness's qualifications as an expert is reviewable for an abuse of discretion. Id. at 718-19 (footnotes omitted).
As to Trooper Shipley's qualifications to testify as an expert about highway design, the evidence showed that he had assisted in the investigation of over 3,800 accidents and had personally signed and approved almost 1,300 accident reports over sixteen years. Part of his job responsibilities included perceiving and reporting flaws in highway design. Given Shipley's practical experience with and knowledge of highway design, we conclude that the trial court did not abuse its discreti
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